California apartments should be aware that checking a resident’s or applicant’s driver’s license is no longer going to be a telltale sign of whether a resident or applicant is legally in the country. And declining a lease based on what the license says – or doesn’t say – or asking questions about citizenship status could lead to a Fair Housing violation.

California Assembly Bill 60, which will be effective Jan. 1, 2015, enables undocumented immigrants to get a driver’s license from the Dept. of Motor Vehicles without the holder presenting a birth certificate or Social Security card. Essentially, the state will issue the license, which has long been one of a few identity verifiers in the apartment industry, without proof that the applicant is a U.S. citizen.

The Bill contains a provision making it illegal to discriminate against an individual because he or she holds or presents this type of license, which ultimately could have implications on housing. A note will be made on the license that the holder did not provide any other documentation.

Leasing Agents & Landlords Need to Be Careful about Questions

Apartment leasing agents typically look at driver’s licenses, visas and Social Security cards to verify the identity of applicants and residents. Rejecting a lease request to a holder of such a license based on immigration status would be a Fair Housing violation.

“It’s really not a housing law,” says Lynn Dover, a fair housing specialist at Kimball, Tirey & St. John LLP. “But it should be a reminder that there is a law that prevents (landlords) from asking about an applicant’s or a current resident’s citizenship or immigration status, and also prevents them from requiring an applicant or current resident to make any statement about his or her immigration or citizenship status.”

That law passed in response to one California city’s attempt to make landlords responsible for verifying immigration status of residents. In 2006, the City of Escondido passed a law that said apartments would lose their business licenses if they were found renting to illegal immigrants. The American Civil Liberties Union (ACLU) sued the City in federal court, and the court issued an injunction that ultimately led to the city withdrawing the law.

In response, the legislature passed Civil Code 1940.3 that prohibits any city from attempting to establish a similar law. It also made it illegal for a landlord to make any inquiry about an applicant’s or resident’s citizenship or immigration status, or to require an applicant or current resident to make a statement about his/her citizenship or immigration status.

Use Leasing Criteria Only as Deciding Factors

To avoid a possible fair housing violation, Dover said that landlords should base their decision to rent to an individual not on immigration status, but on if the applicant or resident meets the criteria for leasing. Also, Dover said that they [Kimball, Tirey & St. John LLP] have always recommended accepting any valid government-issued ID, whether it be state or federal. Requiring that the ID be a driver’s license or other U.S. ID can have a disparate impact – or discriminatory effect – on persons from other countries (national origin discrimination) or on disabled persons who may not drive.

“Apartments need to be concerned about whether the person meets their resident criteria,” she said. “Do they have enough income to meet the property’s rent-to-income ratio? Does their credit meet the property’s credit standards? Do they meet any other criteria the property applies to all their residents?”

Other states have begun issuing driver’s licenses to illegal immigrants as long as they show some form of identification, but California is the first to do so without asking to see documentation. Nevada began issuing licenses to illegal immigrants on Jan. 2, and Utah, Washington, Maryland, Oregon, Connecticut, New Mexico, Illinois and the District of Columbia are expected to follow.

In March, California began setting up five facilities throughout the state to process the driver’s licenses.

(Image source: Shutterstock)

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Tim Blackwell is a long-time publishing and printing executive in the Dallas/Fort Worth area who writes about the multifamily housing and transportation industries. He has contributed numerous articles to Property Management Insider, and worked as a newspaper reporter in the D/FW area. Blackwell is president of Ballpark Impressions, and publishes the Cowcatcher Magazine. He is a member of the Fort Worth Chapter/Society of Professional Journalists.

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